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Tuesday, September 05, 2017

Remedying Democratic Self-Government Wrongs

Following up on my initial post and previous post about my article and our Ninth Circuit brief, this final post addresses the remedial authority of political communities such as states facing threats to their capacity to engage in fundamental tasks of self-government.

American constitutional law remains uncomfortable admitting that two different parts of the Constitution conflict with one another.  Admitting that two parts of the Constitution are implicated often requires courts to pick one part of the Constitution over another.  The preferred doctrinal approach is to find a way to argue that really only one part of the Constitution is implicated after all.  The constitutional law of other countries often approaches these issues differently.  As Stephen Gardbaum has written, comparative constitutional law features courts admitting that some part of the Constitution is violated and trying to find whether there is a good reason for the violation, rather than saying there is no constitutional violation if there is a good reason for the violation.

There are many actions that state governments can take to protect their capacity to engage in fundamental tasks of self-government that do not implicate other constitutional provisions.  Sometimes, though, the only way to protect one part of the Constitution is to implicate another part of the Constitution.  When the remedial authority to address harms to democratic self-government implicates other constitutional provisions, doctrine has generally required the same sort of means-ends examination that other areas of constitutional law require.  The greater the interest in protecting the state’s fundamental political community, and the greater the threat to that interest, the more the state can do in response.  The Supreme Court cases in this area have recognized this logic.  In one case, for instance, the Court indicated that judicial review of limitations on other constitutional interests “will not be so demanding” when core features of state self-government are involved.

Posted by David Fontana on September 5, 2017 at 03:07 AM | Permalink


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